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[Filed at Ottawa, June 21, 1879.J


PRACTICE APPEALS NEW TRIAL CAN NOT BE GRANTED AFTER TWO TRIALS, UNLESS ERROR OF LAW COMMITTED.-This case was previously before the Supreme Court, and the judgment of the court below was reversed, and the cause remanded. The case was again tried, resulting in another verdict in favor of plaintiff. and defendant has again appealed. When the case was formerly before this court the judgment was reversed, because the evidence was not sufficient to authorize a recovery. On turning to the evidence in the record the court finds that appellee has in nowise strengthened his, and that appellant has strengthened his. Hence, the judgment below must be reversed. But it is urged by appellee that there have been two new trials granted in this case, and under the practice act another can not be granted. It is claimed that as the circuit court granted one new trial, and this court reversed the judgment of the circuit court rendered in a subsequent trial, and as that gave appellant a new trial, that these constitute "two new trials," within the meaning of the statute. And for that reason this court can not reverse, because that would be to grant three new trials, and cases are referred to decided by the Supreme Court of Indiana. WALKER, J.: "This question was before us in the case of 26 Ill. 291, under the former statute. It was then said: 'Although there might be a case where this court would set aside a third verdict as being without evidence to support it, or for gross misdirection of the court as to the law, we do not think this is such a case.' In the case of 53 Ill. 479, the question was again before us, and it was said that it is eminently proper that where three juries have found the facts the same way, that there should be an end to the controversy; but it was also said the same reason does not apply to the granting of new trials, because errors in law have been committed. The 23d of appellant's instructions is clearly correct, and the court below erred in refusing to give it to the jury. For this error of law the judgment is reversed."Illinois Cent. R. Co. v. Patterson.

INSURANCE-WHETHER STREET BROKER IS AGENT OF THE ASSURED PAYMENT OF PREMIUM TO BROKER-CHALLENGING JURORS.-This was an action brought by Elizabeth Ward against the Lycoming Fire Insurance Company, on a policy of insurance, executed by the defendant to the plaintiff on the 24th day of April, 1874, insuring the property of the plaintiff. On the trial before a jury, the plaintiff recovered a verdict and judgment, to reverse which the defendant appeals. The first error complained of is the decision of the court in overruling defendant's challenge to five persons as jurors. These jurors were on the regular panel, but they had heard a part of the evidence given in a case which had first been tried in the court between the same plaintiff against the German Ins. Co., where the questions involved were similar to those in the present case. The policy sued on contained conditions to the effect that "any person other than the assured who may have procured the insurance shall be deemed to be the agent of the assured," and that the company was not liable on the policy until the premium thereon was paid. The premium had never been received by the company, and it contends that the policy was void, while the plaintiff claims she paid the premium to one P, with whom she contracted for the insurance. P was at the time an insurance broker. CRAIG, C. J., says: "If a juror has made up a decided opinion on the merits of the case, either from a personal knowledge of the facts, or other causes, and that opinion is positive and not hypothetical, and

such as will probably prevent him from giving an impartial verdict, as held in 3 Scam. 76, the challenge would be well taken, and should be allowed. But these jurors had no fixed or decided opinion in the case, if they had any opinion whatever from what they had learned. The plaintiff accepted


the policy, paid the premium in good faith under the belief that P was the agent of the company. Under such circumstances, who should bear the loss arising from the fraud committed by the street broker; should it fall upon the plaintiff who was an innocent party in the transaction, or should it fall upon the company who alone enabled P to successfully consummate the contract of insurance by placing in his hands the policy for delivery. P was not the agent of the plaintiff, and while he may not have been in fact the agent of the company, still the company by placing the policy in his hands is estopped from claiming that the payment made to him upon the delivery of the policy is not binding upon the company." Affirmed. -Lycoming Ins. Co. v. Ward.

MECHANIC'S LIEN TIME OF PERFORMANCE of CONTRACT-PAROL EVIDENCE-IMPLIED CONTRACT. -This was a petition for a mechanic's lien upon certain buildings described, alleging that plaintiff entered into a written contract with defendants, owners in fee simple of the real estate described, wherein they agreed to furnish certain building materials to be used in the erection of certain buildings, at a certain price to be paid, and that in pursuance thereof the materials mentioned were duly furnished, and that at the time of making the contract it was verbally agreed by them that the work and materials mentioned in the written agreement were to be furnished on or before July 1st, 1875. The case was referred to a master, who reported that plaintiff was not entitled to a lien, for the reason that no time was specified in the written contract, within which the materials were to be furnished. Exceptions were filed to the mas ter's report, which the lower court overruled, and plaintiff appeals. SCHOLFIELD, J., says: "The doctrine is too well settled to require discussion that parol evidence was inadmissible to fix the time when the contract was to be performed. A contract can not rest partly in writing and partly in parol. But it results by legal implication from the the terms of the contract that the performance is to be within a reasonable time. The question is, therefore, does the fact that the contract was only to be performed within a reasonable time preclude the enforcement of a mechanic's lien upon it? This question is settled in the negative by Clark v. Manning, at the present term, and Orrv. N. W. etc. Ins. Co,, 86 Ill. 260. In the first of these cases, no time was mentioned in which the work was to be completed. And it was held, overruling previous cases in conflict with that construction, that under the act of 1861, a mechanic may have a lien provided the work is done or materials furnished within one year from the time of the commencement of the work, although no time for performance is mentioned in the contract. The other case, like the present, arose under the Rev. Stats. of 1874. We held that the contract was either an implied one, or one partly implied and partly expressed, and that in either event it was not affected by the limitation of the statute. In this case, the time of performance of the contract is implied. The balance is expressed. It is therefore in the language of the first section of the chapter on Liens, partly expressed and partly implied, and so a lien is given. And since the implied part of the contract is to be governed by that part of the statutes relating to implied liens (Orr v, N, W. etc. Ins. Co., supra), it follows that, under the 3d section, it is only necessary that this work shall be done within one year from the commencement of the work, which the

proof here shows was done. The court therefore erred in not sustaining the exceptions to the master's report." Reversed.-Driver v. Ford.


August-September, 1879.

RETURN OF SERVICE PRESUMPTION.- The following properly signed indorsement upon a summons is a sufficient return of sufficient service, to wit: "I hereby certify and return that, at the town of St. Augusta, in said county and State, on the 7th day of November, 1877, I served the within summons upon the within named defendant, Jacob Woll, by leaving a true and certified copy at his usual place of abode, with his wife, she bring a suitable person and of age and discretion, and then a resident therein; and further that the person so served, as aforesaid, is the identical person named as defendant herein." Where a public officer is required to perform a ministerial duty in one or two ways, according to circumstances, and he performs it in one of them, the general presumption that officers of that kind do their duty, operates as a presumption that the mode of performance was that which the circumstances authorized. Opinion by BERRY, J.-Goener v. Woll.

WRIT OF PROHIBITION.-In an action proceeding in the ordinary way, the cause of action being within the jurisdiction of the court, if in the course of the action any matter arises or is presented to the court requiring it to decide upon its jurisdiction, an error in such decision must be corrected on appeal, writ of error, or certiorari, if such mode of review is open to the party. In such case the writ of prohibition is not the proper remedy. Opinion by GILFILLAN, C. J.— State v. Municipal Court of St. Paul.

NOTE-FAILURE OF CONSIDERATION.-Where the maker of a promissory note, as a defense to the same, relies upon a partial failure of the consideration, the burden is upon him to show to what extent, i. e., to what value consideration has failed. In this case, the court assumes, for the benefit of the defendant, that the consideration of the note upon which the action is brought is apportionable, and that a partial failure of the consideration of a promissory note is available as a defense in this State. Upon this assumption it is held, that the defendants having failed to make it appear to what extent the consideration had failed in proportion to the whole consideration, the plaintiff is entitled to recover the full face of the note. Opinion by BERRY, J.-Bisbee v. Torinus.


CIVIL PRACTICE-WHEN AMENDED PETITION ALLOWED. The original petition set forth an action ex contractu on a bond of indemnity given to the sheriff by the execution creditor, to save him harmless if he levied on the property which L, the relator, claimed. The amended petition, filed after demurrer sustained, was for simple trespass for taking and carrying away L's goods. Held, that notwithstanding § 7, Wag. Stat., p. 1035, which provides "that a petition or answer may be amended by the proper party of course without costs and without prejudice to the proceeding already had, at any time before the answer or reply thereto shall be filed," the amendment could

not be made. Section 7, supra, does not permit an amendment which could not have been made at common law, latter having permitted amendments by adding additional counts, provided the new counts were substantially the same cause of action. To permit the amendment contended for would sanction the substitution of an action ex delicto for one ex contractu, which section 7, by a liberal and reasonable construction, does not authorize. 5 Wis. 117; 35 Penn. St. 26. Opinion by HENRY, J.-Lumpkin v. Collier.

DEFECT IN SIDEWALK MADE BY ADJOINING OWNERS -WHEN CITY LIABLE THEREFOR-DUTY OF CITY REGARDING STREETS AND SIDEWALKS.- - Plaintiff was injured in consequence of a defect in sidewalk of a street in Kansas City in December, 1873. The testimony showed that the street was in public use, and was one of the principal thoroughfares of the city at the time of the accident, and prior thereto had been graded for vehicles, though no side track had been constructed by the city; but the property owners had placed along it, on the side on which plaintiff was passing, a plank walk, and he was permanently injured, in the night time, in consequence of the improper manner in which said plank walk was constructed. The city engineer knew of the condition of the street, and in 1873, previous to the accident, the city council had passed several ordinances providing for the grading of the sidewalk and for building a plank sidewalk. One of the ordinances recited that the city deemed it necessary to have the work done, and allowed the property owners twenty days within which to do it, otherwise it should be paid for by special tax bill against the property. It was contended by the city that as the walk by which plaintiff was injured was not built by the city, nor in pursuance of its requirement, but was built by the owners of adjacent property, the city could not be held liable for a defect therein until some work had been done on it by the city, and that such work had to be in pursuance of an ordinance. Held, that the sidewalk is that part of the street set apart for the use of pedestrians, and is as much under the control of the city as that portion set apart for vehicles; that it is the duty of the city, whenever a street is required for public use, to put and maintain the same in a reasonably safe condition for travel for pedestrians as well as for vehicles, and it is liable for injuries resulting from neglect of this duty, and if the street is rendered unsafe for travel by obstructions or unauthorized structures placed within the limits which have been opened by proprietors or others, and the city has notice and fails to remove or repair the same, it is liable for the resulting injury (Dillon on Mun. Corp., § § 789, 790 and 791), and the liability attaches to the city whether it adopts the necessary legislation or not. Affirmed. Opinion by HOUGH, J.-Oliver v. Kansas City.

EVIDENCE WHEN DECLARATIONS OF PARTY OFFERED IN EVIDENCE BY OPPOSITE PARTY NOT EVIDENCE FOR THE FORMER. To an action on a policy of insurance issued by defendant on a dwelling and some wine and vinegar stored therein, it was pleaded, first, that the plaintiff, at the time he procured the policy, fraudulently placed an over valuation upon the property insured, and, second, that he placed a like over valuation on the property in the affidavit and statement furnished after the fire, as an account and proof of loss, for the purpose of obtaining the amount sworn to in such statement. Plaintiff introduced evidence tending to show the value of the property to be as alleged by him on procuring the policy, and as alleged in his statement after the loss. The evidence for the defendant tended to prove the property to be of considerable less value than placed on it by plaintiff, and to further sustain that defense the defendant also introduced in evidence the state

ment and proof of loss made by plaintiff to show that the latter had over valued the property. The defendant asked the court to instruct the jury that the affidavit and account and proof of loss furnished to the defendant by plaintiff and read in evidence by defendant should be considered by the jury as evidence of the fact only that they were so delivered to defendant, and not as evidence proving, or tending to prove, the amount of plaintiff's loss, which the court refused to give. Held, that the principle that when the declarations of a party are introduced in evidence by the opposite party, they are to be considered by the jury as evidence as well for the party making as for the party offering them, has no application in this case, and the court erred in refusing the instruction. Reversed. Opinion by HENRY, J.-Brown v. Clay Fire & Marine Ins. Co.



HENRY GREEN, of Easton, has been appointed an associate justice of the Supreme Court of Pennsylvania, vice Judge Woodward deceased. The annual session of the Institut de Droit International will be held this year in Brussels, and will be opened on November 1. Among the subjects to be discussed are: The Conflict of Civil and Penal Laws; Tho Regulations of the Laws and Customs of War; The Applica tion to the Eastern Nations of the Common Law of Europe, and The International Protection of Submarine Telegraph Cables.-England has also been shocked by a blundering execution. The long fall is a failure. The old gallows killed much more mercifully. The British press is discussing the question with all the more vigor, because by an order of the Home Office the representatives of the press are hereafter to be excluded from executions.

[The attention of subscribers is directed to this department, as a means of mutual benefit. Answers to queries will be thankfully received, and due credit given when. ever requested. The queries must be brief; long statements of facts of particular cases must, for want of space, be invariably rejected. Anonymous communications are not requested.]

***The following queries received during the past week are respectfully submitted to our subscribers for solution, by request of the senders. It is particularly desired that any of our readers who have had similar cases, or have investigated the principles on which they depend, will take the trouble to forward an answer to as many of them as they are able.

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The next term of the Supreme Court of the United States commences on the 13th of October. Justices Miller and Strong are already in Washington. The first day, says the Law Register of that city, the court will merely meet and adjourn, and then pay its respects to the President. On the second day, the docket will be called, beginning with number one. There are 821 cases on the docket. On the same day, by special assignment, there will be taken up for hearing the celebrated Virginia case, involving the right of colored men to be tried by juries of their own color. As is known, this case presents most important features, involving the constitutionality of the reconstruction legislation of Congress. There will be quite an array of legal talent in the case, as among those who will argue it will be the Attorney-General of the United States and the Attorney-General of Virginia. Mr. Justice Strong has set for a hearing on the same day before the full bench the case of the Ohio election judge, involving the constitutionality of the election laws of Congress, and the Chief Justice has also set the 14th of this month for the hearing of the habeas corpus The disascases of the Maryland election judges.

trous results of the failure of the Glasgow Bank have given rise, says the Canada Law Journal, to a bill which has been favorably received by the Imperial Parliament, and appears likely to pass into law in England. This bill alters the position of unlimited jointstock banks. It enables the shareholders of such a bank to limit their liability, should they so desire. At the same time, unlimited banks are not obliged to come under its operation; if they think it more to their advantage to remain unlimited, and if the shareholders are willing to face the risks. In the words of the Saturday Review:-" An unlimited Bank will be able to register itself as a limited bank, and it may, of course, choose any kind of limitation it pleases. It may have half or a third only of its capital paid up, and then, in case of liquidation, the uncalled capital will be payable for the benefit of creditors. But unlimited banks that seek to limit their liability will, under the bill, have another course open to them. They will be able to register as banks with reserved liability or limited reserve. In case of disaster, the shareholders will be liable not only for the amount of their shares, but for a further sum, which is always to be a multiple of the amount of each share they hold. Every bank mav choose what this multiple shall be. Some banks will choose to multiply by one, and then the reserve liability will be equal to the amount of the share. Others will multiply by two, and then the reserve will be equal to twice the amount of the share."

The Central Law Journal. Oaks, 20 Johns. 282; Parsonsfield v. Kenne



In Blumenthal v. Tannenholz, recently decided by the New Jersey Court of Chancery and to appear in the next volume of Stewart's Equity reports, an infant whose parents resided in Canada filed a bill in the New Jersey Court to annul her marriage on the ground of fraud. It appeared that she had resided in that State for eighteen months previous to the filing of the bill. The court held that she was incapable of changing her domicil and that it had consequently no jurisdiction, and dismissed the bill. "Unless" say the court, "one of the parties was domiciled here when the suit was brought, the court has no jurisdiction in the case. The fact that the marriage took place here will not confer jurisdiction. The complainant, indeed, swears that she resides here, but she also swears that her parents reside in Montreal, in Canada, and have resided there for the past ten years, and that, when this suit was instituted, she was, and still is, a minor. She does not claim to have been emancipated from her parents, nor does she give any reason for her change of abode from Canada to New Jersey. Her domicil, therefore, must be adjudged to be that of her parents. The domicil of the legitimate unemancipated minor who is not sui juris, and whose will, therefore, cannot concur with the fact of his residence, is, if his father be alive, the domicil of the latter. It is an undisputed position of all jurists, says that writer, that, of his own accord, proprio marte, the minor cannot change his domicil. The burden of proof to establish the change of domicil on the part of the minor, is on him. It is not claimed that the complainant has gained domicil through her marriage. The defendant does not appear to have ever resided in this State." A legitimate infant takes the domicil of its father; Andrews v. Herriott, 4 Cow, 516, note; although such infant be posthumous, and its mother again married, Oxford v. Bethany 19 Conn. 229; or not actually residing with such parent, Adams v. Vol. 9-No. 15.

bunkport, 4 Me. 47; Ryall v. Kennedy, 40 N. Y. Sup. Ct. 347; Brown v. Lynch, 2 Bradf. 214; Helffenstein v. Thomas, 5 Rawle 209; Rex v. Lawford, 8 Barn. & Cress 271. It is said that by marriage a minor may acquire the domicil of his wife; Phillim. on Dom. 50; see Bucksport v. Rockland, 56 Me. 22. In Lake v. South Caanan (Pa.), 18 Alb. L. J. 116, the settlement of a divorced female pauper was held to be that of her husband; although by the desertion of the husband a woman may gain her own domicil, Moffatt v. Moffatt, 5 Cal. 280; Johnson v. Johnson, 12 Bush, 485 Under what circumstances, generally speaking, a woman may acquire a separate domicil, for the purpose of instituting proceedings in divorce, see Cooley's Const. Lim (4th ed.) 401; also Hick v. Hick, 5 Bush, 670; Craven v. Craven, 27 Wis. 418; Jenness v. Jenness, 24 Ind. 355; Vence v. Vence, 15 How. Pr. 497, 576; Hope v. Hope, 29 E. L. & E. 249; Dutcher V. Dutcher, 39 Wis. 651.

The extent of the liability of one person for an injury which, though primarily the result of his act is more immediately the result of the intervention of another, is discussed in the case of Magee v. Caro lately decided in one of the New York inferior courts. The plaintiff while passing along the sidewalk in front of the defendant's store was knocked down by a large box used for packing looking glasses, and sustained injuries for which he brought the present action to recover damages. evidence disclosed, without contradiction, that the box was thrown against the plaintiff by two boys who were playing upon the sidewalk at the time. It was held that the defendant was not liable, the court saying: "The facts proved failed to make out a cause of action against the defendant. The prox


imate cause of the injury was the act of the two boys. Placing the box upon the public sidewalk may have been the primary cause, but the independent act of the boys-a thing the defendant could not have foreseen or been expected to have guarded against-was the direct and immediate cause of the damages. The defendant cannot be held for their

tortious act, and is liable only for the consequences which flow in the ordinary and natural sequence from his own. *** In Scott v. Shepherd, 1 Sm. L. C. 210, the celebrated Squib case, Nares, J., said: "The defendant is the person who gave the mischevous faculty to the Squib. That mischevous faculty remained in it till the explosion. No new power of doing mischief was communicated to it by Willis or Ryal. It is like the case of a mad ox turned loose in a crowd: the person who turned him loose is answerable in trespass for whatever mischief he may do.' It will be readily observed that there is nothing in this case which fixes any liability upon the defendant in the present case. The boys who did the damage were free agents and acted of their own volition. There was nothing inherently dangerous or explosive in the box and the plaintiff might have passed and repassed in safety, if the mischievous conduct of the boys in overturn ng the box had not occured. Blackstone, J., in reasoning out the Squib case, says: 'If a man tosses a football in the street, and after being kicked about by one hundred people it at last breaks a tradesman's windows, shall he have trespass against the man who first produced it? Surely only against the man who gave it that mischievous direction.' In Cuff v. Newark and New York R. Co. 35 N. J., 17, it was held that the intervention of the independent act of a third person between the wrong complained of and the injury sustained, is made a test of that remoteness of damage which, in some cases, forbids a recovery. In that case the court put this apt illustration: A places a log in the highway, which B casts into an adjoining close, or puts an obstruction upon the sidewalk, which passers-by throw into the roadway of the street, and a traveler is injured by coming in contact with it. A cannot be held for the trespass in the one case, or for the injury in the other. In fact, there is no steam engine or piece of machinery so constructed but that an incompetent intruder might cause them to do damage to all in the vicinity. Is the owner to be held liable for such acts committed without his agency and against his will? Certainly not. A person is answerable only for the natural consequences of his own act, or for the act of those in his immediate

employ; in other words, for those consequences which might have been foreseen and expected as the results of his or their conduct, but not for those remote or exceptional contingencies which he could not have foreseen, and was therefore under no moral obligation to take into consideration. If the plaintiff had been walking along the sidewalk in the night time, and not discovering the box in the darkness, had fallen over it and sustained an injury, the defendant would have been liable, because his negligent act in placing the box upon the highway would in that case have been the proximate cause of the injury; or if a pedestrian, while walking upon the highway, had accidentlly or even carelessly knocked against the box and thrown it over, the defendant might have been holden upon the ground that he knew persons were constantly passing and repassing, and he might therefore have foreseen and expected that such an event might happen, but he was not bound to suppose any person would deliberately throw the box over upon pedestrians. Newson v. New York R. Co., 23 N. Y., 383, and he is not liable for such tortious acts by persons alike strangers to the record. Flower v. Adam, 2 Taunt. 314; Weldon v. Harlem R. R. Co., 5 Bosw. 576; Carter v. Towne, 103 Mass. 107. The fact that the boys were under age does not alter the case. They were free agents, and whether of age or not, are responsible in law for their tortious acts."



While the general features of code reform in the different States where the new system is adopted are the same, there are some peculiarities in which there is a diversity, and that in matters of substance as well as form. It was long felt under the former system that while law and equity were generally, and in many, if not most of the States, administered by the same judge, it was great folly to maintain two courts, and especially where a mistake in the court, or rather the sides of the same court, which was quite common, should be visited by a dismissal,

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